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Monday, December 31, 2012

New York City, compared to urban murder centers like Chicago, Philadelphia, Detroit, Baltimore, and Washington, D.C., is a relatively safe place to live. In Chicago, with 500 criminal homicides so far this year, residents of that city were 3.7 times more likely to be homicide victims than New Yorkers. In 2012, New York was the site of 414 criminal homicides, a 19 percent decrease over 2011. This will mark the lowest number of homicides in New York City in 40 years. In 1990, with 2,262 homicides, the city was five times more dangerous than it is today. But even in the Big Apple, murder can raise its ugly head anytime, and in places that are normally safe. These unexpected, high-profile cases, particularly if they suggest a dangerous trend, create a degree of pubic fear out of proportion to the low risk of victimization.

On Thursday morning, December 27, 2012, in the Sunnyside section of Queens, 46-year-old Sunando Sen stood on the elevated platform at the subway stop at Queens Boulevard and 40th Street. Mr. Sen, who had immigrated to the U.S. from Calcutta, India twenty years ago, was on his way to work. Six months earlier, Sen had started the New Amsterdam Printing Company, a small copying shop located on Manhattan's upper west side. Mr. Sen resided with three roommates in a small apartment in Elmhurst, Queens.

As Sunando Sen waited for the Flushing-bound No. 7 train, a heavyset Hispanic woman in her late 20s paced the subway platform behind him. This woman, wearing a blue, white, and gray ski jacket and Nike sneakers, was mumbling to herself. She took a seat on a wooden bench near the north end of the platform, then, as the train rolled into the station, rushed up to Mr. Sen, and from behind, pushed him off the platform onto the tracks below.

When the train ground to a stop, Mr. Sen's crushed body was pinned under the second subway car. His sudden, violent death had come out of nowhere, a reality that makes this kind of murder so frightening. Nobody is safe from that kind of bad luck.

After pushing Mr. Sen in front of the train, the woman ran up the subway station stairway onto Queens Boulevard where she disappeared into the crowd. In addition to descriptions provided by at least five eyewitnesses, detectives had access to grainy, black and white images of the suspect from a surveillance camera positioned at the top of the subway stairway.

Two days after the murder, on December 29, New York City detectives arrested 31-year-old Erika Menendez who said she pushed Mr. Sen to his death because she thought he was a Muslim. Menendez has been charged with murder as a hate crime which carries a maximum sentence of 25 years in prison. According the the New York District Attorney's Office, Menendez said this to her police interrogators: "I pushed a Muslim off the train [platform] because I hate Hindus and Muslim ever since 2001 when they put down the twin towers. I've been beating them up."

Erika Menendez and her victim had never met. She had killed a total stranger, a mild-mannered, hardworking man who happened to be at the wrong place at the wrong time.

New York Mayor Michael Bloomberg, in a moment of uncharacteristic political candor, admitted that there is nothing anyone can do to prevent mentally ill people from pushing innocent victims in front of subway trains. We have to have the trains, and there is no way to keep crazy people off the street. If you throw a ball into a group of fifteen or more people, it will bounce off at least two individuals suffering from some kind of serious mental illness. Moreover, one of those persons will be off his medication. Since most mentally ill people do not walk around in baby steps talking to themselves, it's not always possible to spot and avoid them. Nobody really knows how many out of control meth users and paranoid schizophrenics off their medication are wandering around our big city streets. Also unknown is how many of these people are capable of murder.

On December 30, 2012, a 30-year-old mentally ill street vendor named Naemm Davis pushed Ki-Suck Han in front of a train at the Times Square Station in mid-town Manhattan. Davis has been charged with second degree murder. His attorney is claiming that Davis acted in self-defense. The 58-year-old victim had a wife and a daughter, and lived in Queens. He and Davis didn't know each other, but had argued after Mr. Han asked Davis to stop frightening other subway patrons. At the time of his death, Mr. Han had been drinking vodka.

UPDATE

Since 2005, police officers have been called to Erika Menendezs' home five times on reports of a mentally disturbed person behaving violently. On one of these occasions she threw a radio at a police officer. In 2003, police arrested her for punching a 28-year-old man in the face. He had been a visitor in her family's home. That case was dismissed when the victim dropped the charges. Later that year Menendez assaulted a stranger on the street near her house. As she punched and clawed him in the face, she accused the victim of having sex with her mother. According to members of her family, the mentally ill woman becomes violent when she stops taking her anti-psychotic medication.

Friday, December 21, 2012

Daniel P. Wozniak and his fiancee Rachel Buffett lived in the Camden Martinique apartment complex in Costa Mesa, an Orange County town of 120,000 located 37 miles south of Los Angeles. Wozniak was active in community theater, and Buffett, a 23-year-old aspiring actress, had played princess roles at Disneyland. On a few occasions, the couple had performed together in dramatic plays and musicals in and around Orange County.

Daniel Wozniak had a problem. The 26-year-old was not only broke, he owned money to everyone he knew. On May 22, 2010, four days before his wedding, Wozniak decided to murder Samuel Herr, another community theater actor who lived in the Camden Martinique apartment complex. It was Wozniak's understanding that Herr, a 26-year-old Army combat veteran who had served in Afghanistan, had $50,000 in the bank. After killing the actor whom he owed $500, Wozniak planned to use the dead man's ATM card to withdrawal cash from his bank in $400 increments over a period of months. Wozniak had decided to murder Sam Herr at the Liberty Community Theater located on the Joint Forces Military Training Base in Los Alamitos.

On May 23, 2010, on the pretense he needed help moving boxes, Wozniak lured his intended victim to the theater. The two young actors were in the theater attic when, as Herr bent over to pick up a box, Wozniak shot him in the back of the head with a .38-caliber revolver. The combat veteran fell to his knees and looked up at Wozniak and said, "I have just been--something happened. I just got electrocuted." Wozniak pulled the trigger again, but the gun jammed. After fixing the problem, Wozniak fired another bullet into his victim's head.

Wozniak left the theater in possession of Herr's cellphone, wallet, and ATM card. Before he reaped the monetary benefits of Herr's murder, there was another person Wozniak had to kill. Once he dispatched his second victim, he would return to the theater and deal with Herr's corpse.

Daniel Wozniak intended to kill Juri "Julie" Kibuishi, a 23-yar-old fellow community actor who lived in the Camden Martinique complex. He'd murder Kibuishi in Sam Herr's apartment, and stage the crime in a way to make homicide investigators think that Herr, Julie Kibuishi, and the dead woman's boyfriend had been involved in a love triangle. Wozniak figured that detectives would think the boyfriend, having caught Kibuishi with Herr, had murdered them both, then disposed of Herr's body. (I think it was Truman Capote who said that the most talented actors were also the most stupid. If this is true, then Daniel Wozniak must have been one talented actor.)

Using Herr's cellphone, Wozniak sent Julie Kibuishi a text message asking her to come to the murdered actor's apartment. Shortly after Kibuishi showed up as requested, Wozniak shot her twice in the back of the head. The cold-blooded killer removed her clothing, and posed her in a kneeling position with her head resting on Herr's bed. With a felt-tip pen, Wozniak wrote: "All yours, f--- you" on Kibuiski's sweater.

The next day, May 23, 2010, Wozniak returned to the military base and the Liberty Theater where, in the attic, he used an ax and a saw to cut off Herr's head and both of his hands. Leaving the torso in the theater, Wozniak drove to El Dorado Park in Long Beach where he disposed of the victim's head and hands. Wozniak stupidly thought that by doing this, he had made the dismembered corpse in the attic unidentifiable.

Later that day, Wozniak met with a 17-year-old boy he knew from the local acting community. Wozniak, once again revealing his stupendous lack of intelligence, gave the teenager Herr's debit card and talked him into using it at various ATM locations. (I presume Wozniak promised the kid a small piece of the action.)

Homicide detectives with the Costa Mesa Police Department investigating Julie Kibushi's murder and the disappearance of Sam Herr, began monitoring Herr's bank card activity. They began staking out an ATM location at a pizza parlor in Long Beach where the card had been used several times. Three days after the murders, detectives confronted the 17-year-old after he made a withdrawal. The kid said he had pulled a total of $2,000 from the account, money he had turned over to Daniel Wozniak.

On the eve of Wozniak's wedding, May 25, police arrested him at a place in Huntington Beach called Tsunami where his brother was hosting his bachelor's party. At the police station the next day, Wozniak told his interrogators that "I killed Sam first, and then I killed Julie." Wozniak also led detectives to the spot in El Dorado Park where he had dumped Herr's body parts. Officers went to the Liberty Theater where they recovered the rest of Sam Herr's remains.

An Orange County prosecutor charged Daniel Wozniak with two counts of first degree murder. The prosecutor indicated an intention to seek the death penalty in the case. Wozniak is being held in the Orange County Jail without bond.

On November 20, 2012, more than two years after the double murder, Costa Mesa detectives arrested Wozniak's 38-year-old brother Timothy on the related charge of accessory after the fact. The police also arrested Wozniak's former fiancee, Rachel Buffett on the same charge. According to the Orange County District Attorney's Office, Buffett had fabricated a story about Sam Herr intended to mislead detectives and throw suspicion off Wozniak. After spending several days behind bars, Buffett made bail. If convicted, she could be sent to prison for up to 44 months. According the the 25-year-old aspiring actress, she had no idea her fiancee had murdered Sam Herr and Julie Kibuishi.

Thursday, December 20, 2012

In Los Angeles, Ka Pasasouk began using drugs, assaulting people, and stealing things years before his first criminal conviction as a 23-year-old in 2004. The husky, heavily tattooed street criminal was sent to state prison that year for auto-theft. After serving a few months behind bars, Pasasouk, in 2006, was back in prison after being convicted of robbery and the crime of assault likely to produce great bodily injury. In 2010, after being out of prison for more than a year, a judge sentenced Pasasouk to three years for stealing cars. On January 18, 2012, after being placed under the supervision of the Los Angeles Probation Department, Pasasouk was back on the street living his life of methamphetamine, violence, and theft.

On September 19, 2012, Ka Pasasouk pleaded no contest to the possession of meth in a Van Nuys Superior Court before Judge Jessica Silvers. Fateema Johnson, a prosecutor in the Los Angeles District Attorney's Office had accepted the plea in return for Pasasouk's promise to enter a county drug rehabilitation program pursuant to a recent voter approved ballot measure called Proposition 36. The goal of this program involved sending nonviolent drug offenders into rehab instead of prison. Since Pasasouk was a violent, habitual criminal, he was not the kind of person California voters had in mind when they approved this measure.

At the September 2012 hearing in Van Nuys, a member of the Los Angeles County Probation Department objected strongly to the terms of Pasasouk's plea arrangement. The probation officer pointed out that Pasasouk had not checked in with his probation agent since January. Moreover, according to a report submitted to Judge Silvers by the probation department: "The defendant is an ineligible and unsuitable candidate for continued community supervision. It is recommended that probation be denied, and that the defendant be sentenced to state prison."

Judge Jessica Silvers, on the recommendation of the Los Angeles County District Attorney's Office, handed down suspended sentence on the meth possession case, placed Ka Pasasouk back under the supervision of the Los Angeles County Probation Department, and ordered him to enter the drug rehabilitation program.

Pasasouk, who had no intention of entering a drug program, didn't even bother to check in with his probation agent. In November 2012, when Pasasouk failed to appear in her courtroom to show proof that he was making drug rehabilitation progress, Judge Silvers issued a bench warrant for his arrest.

At four-thirty Sunday morning, December 2, 2012, Ka Pasasouk and three associates--two women and one man--were outside a rundown, unlicensed boarding house in the Los Angeles neighborhood of Northridge in the San Fernando Valley. Pasasouk and his companions were yelling at four people--two men and two women--with whom they had some kind of property dispute. Pasasouk, who was holding these people at gunpoint, suddenly shot and killed all four of them.

Following the quadruple murder, Pasasouk and his accomplices drove to Las Vegas in a black Audi. That night, the police in Las Vegas spotted the car parked at the Silverton Hotel & Casino. Following an all-night surveillance while the arrest warrants were being prepared in Los Angeles, the police took Pasasouk and the others into custody. They are currently being held in the Clark County Jail.

A week after the arrests in Las Vegas, a spokesperson with the Los Angeles District Attorney's Office admitted that Ka Pasasouk should not have been placed on probation following his meth arrest. In recommending the drug rehabilitation program instead of prison, the DA's office had made a terrible mistake.

Had Pasasouk been sentenced to prison in Jaunuary 2012 instead of being placed on probation, he would have served his sentence and been out on the street prior to December 1, the date of the murders. However, had the judge in 2010 given him a stiffer sentence, Pasasouk would not have murdered the four people in Northridge. The problem in California is that the state is broke, and the prisons are overcrowded. As a result, people like Ka Pasasouk are free to walk the streets.

Wednesday, December 12, 2012

The number of people killed by intoxicated drivers has been on the decline for a decade. Since the FBI doesn't keep track of this kind of killing specifically, we don't know how many drunk drivers are convicted of homicide. Every year, 16,000 people are killed in alcohol and drug related traffic accidents, but a certain percentage of those killed are the drivers themselves.

Under state law, an intoxicated driver who causes a fatal traffic accident is guilty of an unintentional criminal homicide called, depending on the jurisdiction, involuntary manslaughter, vehicular homicide, or vehicular manslaughter. Defendants convicted of this lesser degree of homicide usually receive sentences that range from five to fifteen years in prison. The severity of punishment in these cases depends upon the driver's DUI history, the degree of intoxication, and the recklessness of the driving. Over the years, however, judges have become increasingly less lenient in vehicular homicide convictions.

Every year, the police in the United States make about 1.5 million DUI arrests, and unless they pull over someone like Lindsay Lohan, these events are not newsworthy. The same is true for the vast majority of vehicular homicide cases which receive minor coverage in the local press and on television news. However, when a drunk driving fatality involves several children, an entire family, or a car full of teenagers, the media pays more attention, but they are still local news events.

In the early morning hours of December 8, 2012, near the southern California town of Victorville, a man named Ilich Ernesto Vargas, while driving the wrong way on I-15, crashed head-on into another vehicle. The 28-year-old driver of the other car, David Ahmed of Fort Irwin, received minor injuries. But the accident took the life of Vargas' passenger, 50-year-old Kellie Sue Hughes. The California Highway Patrol officer who took the drug-crazed Vargas into custody at the scene, had to employ his taser. Vargas had broken a leg in the crash.

The fatal traffic accident on I-15 that has all the signs of a vehicular homicide case, generated two paragraphs in the Los Angeles Times, and mention the next day on local television news. To date there has been no follow-up on this story by the Los Angeles media.

On the morning Ilich Vargas crashed his car and killed his passenger in southern California, Josh Brent flipped his Mercedes and killed his passenger in Dallas, Texas. While the police in both fatal traffic accidents suspected that the drivers were intoxicated, and therefore potential vehicular homicide defendants, the crash in Dallas has attracted the attention of the national media. The Dallas case is big news because the driver, Josh Brent, plays football for the Dallas Cowboys. The fact that his 25-year-old passenger, Jerry Brown, was a teammate, makes the story even more media significant, particularly in the wake of the recent murder-suicide involving Jovan Belcher, an NFL player for the Kansas City Chiefs.

As a potential vehicular homicide case, there is nothing in the Brent accident that sets it apart from all the other fatalities beyond the identities of the driver and his dead passenger. From the standpoint of the victims' families in these cases, all of these accidents are tragic. And to varying degrees, these fatalities ruin the lives of the intoxicated drivers. But this isn't enough by itself to make these events newsworthy. In the Josh Brent case, the added ingredient is sports. It's really a sports story.

It should come as no surprise that in a country where a single NFL football game generates three times more media attention than the typical crime, weather, political, war, or business related story, that Josh Brent's status as a professional football player has made his situation so important. Print journalists and cable TV correspondents, as well as sports broadcasters and pundits, have gone on and on about the effect of the tragedy on the other players, and of course, the team. There have also been media discussions about how to combat substance abuse among our professional athletes.

Correspondents and reporters in the news and sports media are using the Josh Brent case and the Jovan Belcher murder-suicide as a jumping off point for long, detailed essays on the possible effects of head trauma in the NFL. Has the sport of football become too violent? (Most fans would say yes, that's exactly how we like it.) Is football responsible for player depression, off-the-field domestic violence, drug and alcohol abuse, suicide, and murder? If it is, what can we do about it?

In American culture, professional athletes are special people, and as such, are treated differently than ordinary citizens. Their problems are our problems, indeed, our responsibility. Prior to the intense media coverage of their tragedies, you probably never heard of Josh Brent, Jerry Brown, or Jovan Belcher. Had these men not been professional football players, you still wouldn't know their names.

While we are, in theory at least, all equal under the law, we are not equal under the glare of the media. This may not be a good thing for Josh Brent. The magistrate in his case set his bail at $500,000, ten times higher than what is normal in cases like this. If Josh Brent is convicted of vehicular homicide (I image he will plead guilty), the judge might take advantage of his celebrity to make an example out of him. It that happens, we are not equal under the law either.

Monday, December 10, 2012

On December 7, 2012, a corrections officer at the Blair County Jail in Hollidaysburg, Pennsylvania near Altoona, found 62-year-old Aaron Dishong hanging dead in his suicide-prvention cell. In November, Dishong, in an effort to murder his ex-girlfriend, had set a house on fire that killed a 3-year-old boy instead. Apparently Dishong's intense remorse over the boy's death led to his suicide.

When reading about the suicide of a man who had done a terrible thing, my mind jumped to Jerry Sandusky, another Pennsylvania inmate who for decades did terrible things to dozens of young boys. The former Penn State football coach, convicted in June 2012 of sexually molesting ten children, is serving a thirty to sixty year sentence at the State Correctional Institution in Greene County in southwestern Pennsylvania east of Pittsburgh.

Because Jerry Sandusky is a sociopath who deep in his heart doesn't believe pedophilia is wrong, and that he's therefore a victim of a corrupt criminal justice system, the thought of suicide would not cross his mind until all hope was lost. And even then, it is unlikely he would give his victims and others the satisfaction of his death.

Instead of sitting in his cell feeling guilty about the lives he has directly and indirectly ruined, the 68-year-old pedophile is defiant, and combative. He and his lawyers are currently discussing his post-conviction sentencing motions and appeals. (For example, Sandusky blames his trial attorney for his conviction. He believes that had he taken the stand on his own behalf he could have convinced the jurors of his innocence. In reality, he hadn't been able to convince sports broadcaster Bob Costas that he wasn't a child molester. A typical sociopath, Sandusky has no insight into his own repulsiveness.)

Karl Rominger, one of Sandusky's post-trial attorneys, in speaking to an Associated Press reporter recently, said, "I was meeting with a man [Sandusky] who was ready to press forward, who has regenerated his energies and has clearly devoted his time and energy to perfecting that appeal. His fight is 100 percent back." Really? Is this supposed to make us feel better? Are we supposed to say, "Yea Jerry!" Forgive me, but I would rather be reading a story about Jerry Sandusky's prison suicide than his resurgence as a sociopathic pain in the ass.

On November 21, 2012, attorney Charles Benjamin wrote a letter on Sandusky's behalf to the Pennsylvania State Employees' Retirement System (SERS) appealing the forfeiture of his client's $59,000 a year pension. "We trust," the lawyer wrote, "that SERS, upon further reflection, will agree that no legal basis exists for forfeiture of Mr. Sandusky's vested retirement benefits." When Sandusky retired in 1999, he collected a $148,000 lump sum benefit. By September 2012, when the state cut off his benefits, Sandusky had received a total of $900,000 in pension payments. Under Sandusky's circumstances, most pensioners would leave well enough alone. But Jerry Sandusky is not like most people. He's a sociopath and sociopaths feel entitled, no matter what. Who cares about his "vested interest?" His victims have a vested interest in his misery.

Jerry Sandusky not only wants to keep the state pension money rolling in, he is not happy with his living conditions at the state prison. Because of the nature of his crimes, and his high profile inmate status, prison officials are holding Sandusky in protective custody. This means he is alone in his cell 23 hours a day during the week, and locked in his cell around the clock on weekends. The prisoner is allowed two phone calls a month, and has been issued a television set.

In speaking about Jerry Sandusky's living hell in Greene County, Pennsylvania, attorney Rominger said this: "It's a tough life. And I know some people in the public will say, 'who cares?' " Well Mr. Rominger, you took the words right out of my mouth.

Sunday, December 9, 2012

Born in 1938, Sherman Alexander Hemsley studied acting as an adolescent at the Philadelphia Academy of Dramatic Arts. He served four years in the Air Force, and worked eight years as a postal clerk while acting in New York City workshops and theater companies. In 1973, Hemsley became a regular on the popular television sitcom, "All in The Family." Two years later, he began starring as George Jefferson in the spin-off show, "The Jeffersons." In that sitcom, Hemsley played the role of a feisty, bigoted owner of a dry cleaning chain. In his later years, the actor retired and took up residence in El Paso, Texas.

The 74-year-old actor, on July 24, 2012, died from complications related to lung cancer. At the time of his death he had been scheduled for radiation and chemotherapy treatment. Had Mr. Hemsley died in California, because he was a celebrity, his body would have been autopsied pursuant to state law. Since there was no reason to think that Hemsley's manner of his death was anything but natural, the authorities in Texas did not arrange an autopsy.

According to Mr. Hemsley's last will and testament, his entire estate, valued at $50,000, would pass to Flora Enchinton Bernal, his live-in friend and manager. But when two people came forward to challenge the disposition of Mr. Hemley's assets, Bernal could not proceed with his funeral and burial. As a result, his remains were put on hold at the San Jose Funeral Home in El Paso. Probate battles are not uncommon, particularly following the deaths of wealthy people. However, due to the size of Mr. Hemsley's estate, one would not have predicted such a challenge.

The first person to challenge the Hemsley will and claim the dead actor's estate was the deceased's half-brother and former manager, Richard Thornton. In his probate petition, the resident of Philadelphia questioned the will's authenticity by casting doubt on Hemsley's signature that "looked like a tracing." (I don't know if this was the opinion of a qualified forensic document examiner or Tornton's.)

The second challenger to enter the probate battle was Hemsley's cousin, Reverend Michael George Wells, the minister at Philadelphia's Arch Street United Methodist Church. On August 16, 2012, Reverend Wells officiated at a memorial service held for his cousin at the Deliverance Evangelistic Church in North Philadelphia.

By October 2012, because of the probate challenges, Sherman Hemsley's body had still not been buried. Probate court judge Patricia Chew scheduled a hearing for November 9, 2012 to resolve the dispute.

A few weeks before the hearing, Reverend Wells, in speaking to a reporter with the El Paso Times, pointed out that Flora Bernal, the beneficiary, had not been on good terms with the deceased actor. When the reporter asked the reverend why he was going to such lengths over such a tiny estate, Reverend Wells said he believed Hemsley's estate was much larger than $50,000. "We are family," he said, "and we are not looking for money. But if we are entitled to something, we don't want anyone else to have it."

As the probate hearing grew near, Reverend Michael Wells continued to wage his probate battle in public. To a Fox News correspondent he said, "What the media needs to know is that Sherman Hemsley's body being in the refrigerator for this amount of time is unnecessary and uncalled for. He could have been buried with his family within a week or ten days of his passing. His will...was found seven days after he died. No one reached out to me, my mother, or any person with a relationship to Sherman. In the beginning they said he died of natural causes. Then it came out he had cancer. [Cancer is a natural manner of death.] We have no knowledge of the doctors, hospitals, no one talked to us about his cancer....[Flora Bernal] knows my family, this is what perplexes me. I called there on June 1, and why did she not tell me Sherman was dying of cancer? There needs to be an investigation."

On November 9, 2012, Judge Chew ruled that Sherman Hemsley's last will and testament was valid. That put an end to the probate challenges. On November 21, following a service at the Cielo Vista Church in El Paso, Mr. Hemsley was buried at the Fort Bliss National Cemetery.

You can choose who to put in your will, but, as they say, you can't choose your relatives.

Monday, December 3, 2012

In 2010, in Kalispell, Montana, a town of 20,000 in the northwest corner of the state, 38-year-old Dan Fredenberg, a divorced father of two, met and started dating a 20-year-old cocktail waitress named Heather King. After Heather became pregnant with twins, she and Dan got married. The marriage didn't work out. He drank too much, they had financial problems, and he was a bit of a lady's man. The couple fought, and talked frequently of divorce.

In June 2012, Heather informed her husband that she was having a friendly but nonsexual relationship with Brice Harper, a 24-year-old resident of Kalispell. Dan Fredenberg did not take the news very well and was understandably jealous. (He probably didn't believe the nonsexual part.) That month the two men were involved in a nonphysical confrontation at Fatt Boy's Bar & Grille in Kalispell.

On September 22, 2012, Brice Harper called Heather Fredenberg with a request. He was moving out of town the next day and wondered if she could come to his duplex and help him clean house. Heather put her twin sons into her car and made the five minute trip to Harper's dwelling. That day, while at Harper's place, Heather and her husband exchanged angry text messages. When they spoke on the phone, Dan asked his wife if she was with Harper. She didn't answer his question so he swore at her and hung up.

At eight-thirty that night, Heather, about to leave Harper's house, put the twins into her car. Before going home, she asked Harper to ride around the block with her. Perhaps he could determine what was making the clunking noise coming from under the hood of her car. Harper climbed into the vehicle. They hadn't traveled very far when Heather realized they were being followed by her husband. When she pulled back into Harper's driveway to drop him off, Heather suggested that he go directly into his house and lock the doors. Harper replied that he was not afraid of her husband. He also told her he owned a gun. Anticipating trouble, Heather backed out of the driveway, but did not pull away from Harper's house.

Dan Fredenberg, who was not armed, climbed out of his car, walked up Harper's driveway and into his garage through the open door. Harper came out of his house and into his garage carrying a handgun. From a distance of a few feet, he shot Fredenberg three times.

As Dan Fredenburg bled on the floor of Brice Harper's garage, Heather, screaming at the top of her lungs, ran to him. "Call 911," he said. Pronounced dead a short time later at the Kalispell Regional Medical Center, these had been his last words.

Ed Corrigan, the Flathead County attorney, had to determine if under Montana's so-called "castle doctrine" (because a man's home is his "castle," he does not have to retreat from using deadly force against an intruder), Brice Harper had committed murder. Did this killer have the legal right to stand his ground against an unarmed intruder in his garage?

In most of the twenty states that justify the killing of a home invader by the dwelling's legal occupant, the use of deadly force is an affirmative defense to criminal homicide. This means that the use of lethal force under these circumstances is presumed unjustified, placing the burden of proving this defense on the accused. (The defendant must prove his case by a preponderance of the evidence, a less rigorous evidentiary standard than proof beyond a reasonable doubt needed to rebut the presumption of innocence.)

In Montana, the state legislature, in 2009, modified this self-defense doctrine by shifting the burden of proof to the prosecution. In other words, the state has to prove that the homicide defendant's actions were outside the castle doctrine. On October 9, 2012, the county attorney, in a 4-page letter to the Kalispell Police Department (the dead man's father was a retired police officer), announced his decision not to prosecute Brice Harper for criminal homicide. Prosecutor Ed Corrigan wrote that under Montana's revised statute, "you [referring to the defendant] didn't have to claim that you were afraid for your life. You just have to claim that he [the victim] was in the house illegally. [An attached garage is considered part of a dwelling.] If you think someone's going to punch you in the nose or engage in a fistfight, that's sufficient grounds to engage in lethal force."

It is not, in my view, good jurisprudence to write a law that makes the use of deadly force, under certain circumstances, legal. There is a danger that this type of law will actually encourage violence. The better approach is to allow the use of deadly force, under clearly defined circumstances, as a homicide defense, a defense the accused has the burden of proving.

In another state, Brice Harper would probably have been prosecuted for voluntary manslaughter on the grounds he had used excessive force against an unarmed man. In his defense, he could have argued that he felt that his life was in danger, and because the confrontation took place in his house, he didn't have to retreat. In my view, Harper may have had a difficult time convincing a jury that his life was in danger. Moreover, jurors may not have liked the fact Harper had been fooling around with the dead man's wife.

The GE Mound Case

SWAT Madness and the Militarization of the American Police: A National Dilemma

"[A] powerful work . . . well researched . . . Recommended." Choice

LITERARY QUOTATIONS: GENRE

LITERARY QUOTATIONS: GENRE is a compilation of informative and entertaining quotes by writers, editors, critics, journalists, and literary agents on the subject of literary genre. The quotes also touch on the subjects of craft, creativity, publishing, and the writing life.

Contributors

A graduate of Westminster College (Pennsylvania) and Vanderbilt University Law School, I am the author of twelve non-fiction books on crime, criminal investigation, forensic science, policing, and writing. I have been nominated twice for the Mystery Writers of America's Edgar Allen Poe Award in the Best Fact Crime Category. As a former FBI agent, criminal investigator, author, and professor of criminal justice at Edinboro University of Pennsylvania, I have been interviewed numerous times on television and radio and for the print media.
For more information about me, please visit my web site at http://jimfisher.edinboro.edu.